Following
a seven-day bench trial, the Court concluded that plaintiff
Diping Anderson's termination from her employment as a
Postal Police Officer ("PPO") was retaliatory in
violation of Title VII. The Court issued its findings of fact
and conclusions of law on March 16, 2017. Anderson v.
Brennan, No. CV 14-13380-PBS, 2017 WL 1032502 (D. Mass.
Mar. 16, 2017). The Court assumes familiarity with that
decision. Judgment was entered on March 17, 2017. The parties
subsequently filed four motions seeking reconsideration of
both liability and remedies.

The
Court's finding of liability stands, but the Court finds
that some reconsideration of the remedies is appropriate. The
Plaintiff's Motion to Alter Judgment (Docket No. 125) is
ALLOWED in part and DENIED in part. The
Plaintiff's Motion for Leave to File Untimely Motion for
Attorney's Fees (Docket No. 126) is ALLOWED. The
Plaintiff's Motion for Assessment of Pre-Judgment
Interest (Docket No. 127) is ALLOWED in part and
DENIED in part. The Defendant's Motion for
Reconsideration (Docket No. 128) is ALLOWED in part
and DENIED in part.

BACKGROUND

In
September 2013, Anderson was removed from service as a PPO
for failure to perform her duties while assigned to guard the
Brockton postal facility in the aftermath of a building fire.
Anderson's termination notice stated that, in addition to
her misconduct at Brockton, three prior disciplinary
incidents on Anderson's record “ha[d] been
considered in arriving at this decision”: (1) her June
24, 2011 seven-day suspension; (2) her August 29, 2012 Letter
of Warning; and (3) her September 26, 2012 fourteen-day
suspension.

Anderson
brought this suit against the Postal Service claiming that
her removal was unlawfully discriminatory and retaliatory, in
violation of Title VII. At trial, Anderson presented evidence
not only on the circumstances of her removal but also on the
circumstances underlying the three prior disciplinary
incidents cited in her notice of removal. At the close of
evidence, the Court directed the parties to address in their
closing arguments what impact there should be on the verdict
if the Court found some of the prior disciplinary incidents
to be discriminatory or retaliatory.

In
closing arguments, the parties clarified that the only
remedies sought in this case were those stemming from the
removal. The parties were in agreement that Anderson could
not timely seek remedies for any of the prior disciplinary
incidents. However, Anderson argued that the circumstances
underlying the prior disciplinary incidents were relevant to
assessing whether the removal decision was discriminatory or
retaliatory. The Court signaled to the Postal Service that
the Court would only consider remedies based on the removal
decision but that the Court was “very much going to be
considering the progression [of discipline] to see whether
the notice of a removal was appropriate.” The Court
asked the Postal Service to answer, in its supplemental
proposed findings of fact and conclusions of law, the
following question: “If I find that one of them [the
prior disciplinary actions], or more, were retaliatory, and
if I find they were a substantial factor in the decision for
removal, what do I do?” The Postal Service minimally
addressed the question in its briefing: “That decision
[by the administrative judge upholding the seven-day
suspension] became final when Plaintiff neither appealed that
decision nor brought an action in federal court within the
time permitted to do so. Any consideration of it now is
precluded as a matter of law.” Docket No. 121 at 7. For
that proposition, the Postal Service cited
Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 71 (1st
Cir. 2011), Martinez v. Potter, 347 F.3d 1208, 1211
(10th Cir. 2003), and Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002).

On
March 16, 2017, the Court issued its findings of fact and
conclusions of law (“bench trial order”). The
Court concluded that Anderson's removal was retaliatory.
The Court awarded back pay and emotional distress damages.
Anderson, 2017 WL 1032502, at *16-19. The Court also
ordered reinstatement of Anderson not as a PPO, but in the
position she held in the Postal Service prior to becoming a
PPO: a full-time window clerk. Id. at *17.

DISCUSSION

I. Legal Standard for Altering or Amending
Judgment

Federal
Rule of Procedure 59(e) provides for the filing of a motion
to alter or amend a judgment no later than twenty-eight days
after the entry of judgment. “Rule 59(e) itself does
not state the grounds on which relief under the rule may be
granted, and the district courts have considerable discretion
in deciding whether to grant or deny a motion to alter or
amend under Rule 59(e).” Venegas-Hernandez v.
Sonolux Records, 370 F.3d 183, 190 (1st Cir. 2004). The
case law has articulated some circumstances in which Rule
59(e) relief is appropriate. Id. Among those
circumstances is when “the movant shows a manifest
error of law.” Kansky v. Coca-Cola Bottling Co. of
New Eng., 492 F.3d 54, 60 (1st Cir. 2007).

II.
Consideration of Prior Disciplinary
Incidents

The
Postal Service argues that the Court made an error of law by
considering the retaliatory nature of prior disciplinary
incidents in finding liability for retaliatory removal. In
its bench trial order, the Court recognized that
Anderson's three prior disciplinary incidents were not
directly actionable because they were time-barred and
unexhausted. Anderson could not revive and seek a remedy for
past unlawful prior disciplinary incidents by bundling them
with the more recent removal, for which her Title VII claim
was timely. See Nat'l R.R. Passenger Corp., 536
U.S. at 113 (“[D]iscrete discriminatory acts are not
actionable if time barred, even when they are related to acts
alleged in timely filed charges.”); see also
Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23,
48 (1st Cir. 2015).

However,
the Court held that because of the Postal Service's
explicit reliance on prior discipline in its progressive
discipline system, consideration of the prior disciplinary
incidents was appropriate even if Anderson was only seeking a
remedy for unlawful removal. To recover for retaliatory
removal, Anderson must show that she would not have been
removed but for engagement in protected activity.
One part of the Court's reasoning was that Anderson could
meet that causation requirement by showing that she would not
have been removed but for her prior disciplinary incidents,
which themselves would not have been imposed but for
engagement in protected activity.

The
Postal Service now cites two cases to attack the Court's
reasoning. The main case is United Air Lines, Inc. v.
Evans, 431 U.S. 553 (1977). The plaintiff in that case
was Evans, a female flight attendant who had been forced to
resign from her position in 1968 because of a policy by
United that prohibited female flight attendants from being
married. Evans did not file a timely challenge to the policy,
although the policy was later found to violate Title VII in a
case to which Evans was not a party. Evans was rehired by
United in 1972. In Evans, Evans recognized that it
was too late to obtain relief for unlawfully being forced to
resign in 1968 but she claimed that United's refusal to
credit her with seniority for her employment prior to 1972
gave present effect to the past unlawful practice. The Court
held that Evans could not recover under that theory:

Respondent is correct in pointing out that the seniority
system gives present effect to a past act of discrimination.
But United was entitled to treat that past act as lawful
after respondent failed to file a charge of discrimination
within the 90 days then allowed by [42 U.S.C. §
2000e-5(e)]. A discriminatory act which is not made the basis
for a timely charge is the legal equivalent of a
discriminatory act which occurred before the statute was
passed. It may constitute relevant background evidence in a
proceeding in which the status of a current practice is at
issue, but separately considered, it is merely an unfortunate
event in history which has no present legal consequences.

Respondent emphasizes the fact that she has alleged a
continuing violation. United's seniority system
does indeed have a continuing impact on her pay and fringe
benefits. But the emphasis should not be placed on mere
continuity; the ...

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